Tuesday, June 4, 2013

In an unprecedented case, a Washington news council has determined that the Seattle Times was inaccurate and unfair to a forensic psychologist targeted in an investigative series on the state's sexually violent predator program.

Reporter Christine Willmsen went too far in her four-part investigative series on the costs of implementing SVP laws by singling out psychologist Richard Wollert for public censure. Relying on prosecution sources, she portrayed Wollert as a defense hack who promulgated unorthodox theories in order to line his own pockets, quoting detractors who called him an "outlier" and "a symphony with one note" who spoke "mumbo jumbo."

During Saturday's three-hour hearing, Wollert testified that the Times series had "tainted the Washington jury pool" by implying that psychologists who testified for the defense were not credible, and damaged his professional reputation. He said his annual income plummeted from about $450,000 to between $175,000 and $200,000 in the wake of the January 2012 series.

By a 7-to-2 vote, the Washington News Council found that the Times did not make sufficient efforts to contact sources other than prosecutors. On the larger question of whether the "Price of Protection" series was "accurate, fair, complete and balanced" in its portrayal of Wollert, the council sided with Wollert by a narrower, 6-to-4 margin. The council was evenly split on whether the headline of the first article in the series, "State Wastes Millions Helping Sex Predators Avoid Lock-up," was "accurate and fair." The votes by the ombudsman body, after a public hearing live-streamed from Seattle Town Hall, have no legal authority. The Times refused to attend what it labeled a "quasi-judicial spectacle," objecting to the council's "assumed authority."

Accuracy, fairness and journalistic ethics

This is the second investigative series by Times reporter Willmsen to raise protests; in 2004, a local school board challenged the fairness of a series on "Coaches Who Prey." The SVPseries illustrates how what passes for investigative journalism these days is often just piling on against the underdog. Reflective of the corporate monopolization of daily media, it bears little resemblance to the muckraking spirit that dominated when I was in journalism school, in the heady afterglow of Woodward and Bernstein's Watergate expose.

The basic premise of this series was certainly newsworthy: That Washington’s SVP law-- the first in the United States -- created "a cottage industry of forensic psychologists" who are gorging themselves at the public troughs. (That's a theme of this blog as well.) But by relying almost exclusively on prosecution sources, Willmsen became nothing more than a mouthpiece for government efforts to discredit and silence experts who present judges and juries with information that they don't like.

The case raises important distinctions among accuracy, balance and fairness in journalism. Journalists' voluntary code of ethics calls for accuracy, fairness and honesty in reporting and interpreting information. Balance, on the other hand, is not always desirable. As the Times noted in its rebuttal letter to the news council, "The pursuit of balance resulted in years of articles and broadcasts that gave the 1 percent of scientists who were climate-change deniers the same weight as the 99 percent who were certain that human activities were having an adverse impact on global climate."

Yet in this case, Willmsen's embeddedness with prosecutors resulted in such a profound lack of balance that the series was blatantly biased, and crossed the line from news reporting into advocacy. Consider Willmsen's one-sidedness in reporting on three of her major themes:

Money:

Richard Wollert testifying (from Seattle Times video)

The main theme of the series was that defense-retained experts were gouging the state. Willmsen wrote that Wollert made more than $100,000 on one SVP case; in a video from the series, Wollert is shown testifying that he earned $1.2 million from sexually violent predator cases in Washington and other states over a two-year period. That's a big chunk of taxpayer money, and the revelation undoubtedly caused public outrage against defense attorneys and their experts.

Willmsen wrote that government experts were not paid that much. However, this is demonstrably false. During the period that Willmsen was collecting data for the series, a California psychiatrist who is popular with Washington prosecutors was charging $450 per hour (the average among forensic psychologists being about half that) and -- like Wollert -- had billed more than $100,000 in a single case. His name does not show up anywhere in the series.

Following publication of the series, Washington capped the fees of defense-retained SVP experts at $10,000 for evaluations, a fee that includes all travel expenses, and $6,000 for testifying (including preparation time, travel, and deposition testimony). The fees of prosecution-retained experts were not capped.
Boilerplate reports:

In the video, Willmsen targets defense-retained expert Ted Donaldson for writing boilerplate reports in which the names were changed, but the text remained virtually the same.

Boilerplate reports are indeed a travesty. Especially when someone is facing potentially lifelong detention for a crime that is only a future possibility, experts should present a keen understanding of what makes that specific individual tick. But, having reviewed dozens of reports in Washington SVP cases, I can attest to the fact that government hacks are at least as guilty of this sin. In fact, one of the most popular of prosecution-retained experts in Washington is infamous for writing novel-length boilerplate reports. In two recent cases that I am aware of, he even forgot to excise the name of the previous individual. So, one will be reading along in his report on Mr. Smith, and suddenly come across big chunks of material describing Mr. Jones.

Faulty science:

In her reporting, Willmsen lambasted an actuarial tool developed by Wollert, the MATS-1, as being illegitimate. The idea behind the MATS-1 is to fully account for the reduction in risk that occurs as offenders age. The reporter quoted Karl Hanson, a Canadian researcher who is unhappy with Wollert because Wollert modified his popular Static-99 tool to create the MATS-1. But a fair and unbiased report would not rely for the unvarnished truth on a source who is essentially a business rival. In truth, as I've blogged about myriad times, there are plenty of
grounds to critique the methodology and accuracy of any actuarial
technique. In contrast to her disdain for the newer MATS-1, Willmsen lauds the Static-99 as the most widely used actuarial tool for assessing sex offender risk. But just because McDonald's sells way more burgers than In and Out Burgers does not mean their beef is any purer.

As Wollert told the council members, "When we're talking about the advancement of science, people have different ideas"; one test of good research is whether "it's accepted over time." By that standard, Wollert's theories are doing pretty well. His published thesis that actuarial tools overestimated risk among elderly offenders was once controversial but is now widely accepted. Similarly, he was one of the first to publish criticism of the predictive abilities of the MnSOST-R actuarial tool; recently, that instrument was pulled from use because of its inaccuracy in predicting sex offender recidivism. And Wollert was emphasizing Bayesian reasoning -- most recently popularized by Nate Silver in The Signal and the Noise -- before many in our field realized how essential it was.

While it is certainly laudable for the press to investigate bloated fees and the waste of taxpayer money, by
laying all blame on the defense, the Times
likely prejudiced the jury pool and squelched zealous representation by
defense attorneys, who in terms of both resources and legal clout are
like David battling the state’s mighty Goliath. Instead of proffering Wollert as a whipping boy, then, an impartial
investigation would have uncovered exemplars of problematic practices on
both sides of the legal aisle.

A true muckracking journalist would have dug even further, to ask:

How did opportunist politicians bamboozle the public into enacting costly laws that do little to protect the public, while simultaneously distracting from more fruitful efforts at reducing sexual violence?

How has the SVP laws' legal requirement of a mental disorder expanded the influence of forensic psychology, with battles of the experts over sham diagnoses boosting the fortunes of shrewd practitioners, many of whom were toiling away
as lowly prison and hospital hacks prior to these laws?

Talking to the press

During their public deliberations, several council members chastised Wollert for declining Willmsen's repeated requests for an interview. Wollert said that the reporter had been rude and exuded bias when she approached him. But the panelists said Wollert had no legitimate expectation of deference or politeness.

"You cut your own throat," said John Knowlton, a council member and journalism professor at Green River Community College.

But must a source submit to an interview, even if he knows that it is a trap, and that his words will be twisted and used against him? This is a dodgy question. While many journalists are conscientious and above-board, others are not. Recall Janet Malcolm's provocative opening words in The Journalist and the Murderer, examining the ethics and morality of journalism in connection with journalist Joseph McGuiness's betrayal of murder suspect Jeffrey MacDonald in Fatal Vision:

"Every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible. He is a kind of confidence man, preying on people's vanity, ignorance or loneliness, gaining their trust and betraying them without remorse. Like the credulous widow who wakes up one day to find the charming young man and all her savings gone, so the consenting subject of a piece of nonfiction learns -- when the article or book appears -- his hard lesson."

Perhaps Wollert could have adequately protected himself by asking the reporter to submit her questions in advance, and by responding in writing, via email. But who knows?

His decision to trust his instincts may have come back to bite him. Then again, he might have been bit even worse had he let down his guard with an agenda-driven journalist who had him in her crosshairs.

4 comments:

Excellent look at the “big picture” behind this story, Dr. Franklin! I hope your blog stimulates extended discussion on these important issues.

Obviously, it has touched my family personally over the past 16 months. But the larger questions you expose should send shivers down the spines of civil libertarians everywhere.

I truly believe that this unholy collusion between Washington State and The Seattle Times has harmed justice in future civil commitment hearings. It was a blatant (and somewhat successful) attempt to significantly weaken an accused person’s access to a zealous defense not only in Washington, but other states as well.

This article, so full of misinformation and lies, has been used by prosecutors in an attempt to impeach defense experts at depositions and trials in multiple jurisdictions. Its sinister unspoken threat to the defense? You will be publicly harassed and humiliated, too, if you dare to follow Dr. Wollert’s research or advocacy path.

Prosecutors certainly enjoy the free speech rights we all do. However, any extrajudicial statements made to the press should be carefully considered for the following important reason: Prosecutors’ words reach thousands of potential jurors who are news media readers. Misinformation and distortions of the truth will taint jury pools, as you so aptly point out. And tainting jury pools limits justice being served.

In this case, I believe Brooke Burbank and David Hackett’s participation in this story was so extensive and pervasive that they both deserve a byline with reporter Christine Willmsen.

One more point I failed to add to my comments yesterday: Journalists, like every other human being on the planet, are at risk for making judgments based on "confirmatory bias." It would do them well to learn what this is.

I believe that this thinking error was a major contributor to the weaknesses in Christine Willmsen's article and the subsequent rush-to-judgment pile-on allegations made by The Seattle Times as they attempted to defend her irresponsible reporting and prove that they were right. It may have impacted the thinking of some members of the Washington News Council panel, as well.

I don't need to explain this term to psychologists.

For those who have not heard of this concept, however:

"Confirmation bias" is a type of selective thinking whereby a person tends to notice and to look for what confirms their beliefs and to ignore, not look for, or undervalue the relevance of what contradicts their beliefs.

Willmsen is a hack. Look at her history. The Seattle Times keeping her employed is a statement about their desire to sell newspapers, not produce ethical journalism. Both parties are pathetic. Kudos to the council for pointing this out!

When I was first contacted about testifying as a statistician, I looked up what people had written on methodology and I found Wollert's work outstanding. We have since worked together. Rich has a first-rate knowledge of statistical methodology; the same cannot be said of Karl Hanson and the others who testify for the State. Their testimony reminds me of the definition of a diplomat - an honest man who goes abroad to lie for his country.

Subscribe to newsletter

Two quick and easy ways to support the blog:

Karen Franklin, Ph.D. is a forensic psychologist and adjunct professor at Alliant University in Northern California. She is a former criminal investigator and legal affairs reporter. This blog features news and commentary pertaining to forensic psychology, criminology, and psychology-law. If you find it useful, you may subscribe to the newsletter (above). See Dr. Franklin's website for more information.

Book reviews at Amazon

Dr. Franklin is a frequent reviewer of books and movies. Browse her reviews here. If you find a review helpful, please give positive feedback. (Click on "Permalink" and then on "Yes," this review was helpful.)